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1993, No. MA40
(Criminal)
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HEADNOTE
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POSSESSION OF FALSE PASSPORT - TRANSIT A MITIGATING FACTOR
IN THE SUPREME COURT OF HONG KONG
(Appellate Jurisdiction)
Magistracy Appeal No. 40 OF 1993
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BETWEEN
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THE QUEEN
and
SONG XIAO LUO
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Respondent
Appellant
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Coram : Hon. Bewley, J. in Court
Date of hearing : 27th April 1993
Date of delivery of judgment :
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J U D G M E N T
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1. The appellant pleaded guilty to possession of one unlawfully obtained and one unlawfully altered travel document, contrary to s.42(2)(c)(i) of the Immigration Ordinance, Cap.115. He was sentenced by Mr Andree Wiltens at Western Magistrates Court to consecutive terms of eight and four months imprisonment.
2. The appellant was in transit from Peking to Singapore. At the airport transfer desk he produced a Bangladeshi passport the expiry date of which was found to have been altered from 1991 to 1996. In all other respects it was a valid document.
3. He was also carrying a Guyana passport which bore his photograph but which was in the name of another person. The appellant admitted purchasing this document in China in order to facilitate travel to European countries.
4. The appellant claims that he had to travel urgently to Singapore to sign a $50 million contract and that he had no time therefore to obtain a new Bangladeshi passport. He does not explain why it was not renewed by the Bangladeshi consular officials in 1991.
5. Mr Sanguinetti, who appears for the appellant, submits that the overall sentence is too high and that the terms should have been concurrent.
6. This is one of the rare cases where the passport holder did not attempt to pass through immigration in Hong Kong. In R v Raquel M. Garcia MA No.1317/89 Bokhary J (as he then was) demonstrated by reference to R v Gafni Zvi CA No.229/88 that this is a mitigating factor. Since it was not taken into account by the magistrate in this case I am satisfied that Mr Sanguinetti is right.
7. The appeal is allowed and the two sentences ordered to run concurrently.
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(E. de B. Bewley)
Judge of the High Court
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Mr P.K. Madigan, S.C.C., for the Crown
Mr A.J.J. Sanguinetti and Mr Tsang Kam Hung, inst’d by M/s Pang, Wan & Choi, for the Appellant
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